Washington, D.C. - On March 8, 2005, the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property conducted an oversight  hearing concerning intellectual property which cannot be identified or attributed to a particular copyright owner.  These so called "orphan works" were the subject of a Copyright Office report recently published by the Library of Congress which called for changes in the law to accommodate orphan works cases. At the hearing, a Copyright Office spokesperson discussed the recommendations in the report and trade association representatives weighed in on them. 

In his opening statement, Subcommittee Chair Lamar Smith (TX) described himself as a proponent of strong copyright protections, and suggested that the recommendations brought forth by the Copyright Office to deal with orphan works was balanced.  He supported ongoing negotiations and noted that the Subcommittee would draft a legislative proposal on the matter in the coming weeks but he warned that parties threatening to hold up the legislative process would be left behind.   Although anticipating disagreement and expressing a commitment to move ahead with legislation to resolve the matter, Chair Smith was optimistic that a common ground solution could be achieved on the subject of orphan works.  "I think we can get there in the end," said Smith.
 
 The Subcommittee's ranking Democrat, Howard Berman (North Hollywood) also commended the Copyright Office for the proposals contained in the orphan works report.  He went on to express interest in establishing reasonable protections for visual artists such as photographers and illustrators who are most likely to be impacted by changes to the copyright law recommended in the report.  Subcommittee member Darryl Issa (Vista) echoed Rep. Berman's concerns and stated that the government should do more to meet the expectations of a public that can easily locate images on the Internet.  He inquired about the possibilities of fine tuning any proposal to alter the law and inferred that a more formalized definition of search standards could help identify and locate orphaned intellectual property in cases where ambiguity existed over image location.
 
Jule Sigall of the US Copyright Office stressed in his testimony that the orphan works situation was real and needed to be addressed.  He identified the four most common obstacles to locating copyright ownership as: inadequate information on a copy of the work, changes in ownership or owner's circumstances, limitations in existing copyright ownership information sources, and research difficulties surrounding copyright information.

 

 Among the solutions to orphan works problems contained in the report were: improved voluntary or mandatory databases for locating an owner's work, legislative solutions that involved limitations on remedies when users use orphan work, and deeming all orphan work as in the public domain, among others.  The report settled on a recommendation that the Copyright Act be legislatively updated to require users to perform a reasonably diligent search to find orphan works owners after which limitations on remedies would be in order if no owner could be identified.  The standard for reasonably diligent would be general and applied on a case-by-case basis, according to Mr. Sigall.

 

Allan Adler of the Association of American Publishers, although supportive of the Copyright Office's minimalist approach to resolving the orphan works question, stated that the report's recommendations were not reliable and needed further clarification. 

 

David Trust CEO of the Professional Photographers of America (PPA) was not in favor of the recommendations and preferred to see no changes to the copyright laws.  Trust testified that the new recommendations included in the report would have a "devastating effect" that would jeopardize a photographer's earning power by giving users the authority to not give proper attribution or adequate compensation to photographers.  According to Trust, if the copyright office's proposed changes were to be instituted, his organization would recommend a two year delay in implementation of the amendment, and the inclusion of a small- claims copyright court option as a mechanism for making "reasonable royalty" damages accessible to creators.

 

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For the text of Rep. Berman's Opening Statement, please follow this link: